It was a headline befitting the National Enquire, splashed across the top of the newspaper in four different fonts and three different colours: “The evidence abundantly shows that Mr Trudeau knowingly sought to influence Ms Wilson-Raybould both directly and through the actions of his agents.”
And boom, it turned into a media circus.
The fundamental problem with this headline is the Ethics Commissioner, Mr Dion, also said simply seeking to influence another’s decision is not enough to breach of section 9 of the Conflict of Interest Act.
A second element is required. Mr Dion had to find that “Mr. Trudeau, through his actions and those of his staff, sought to improperly further the interests of SNC-Lavalin.”
Mr Dion said both elements were satisfied; however Errol Mendes, a professor of constitutional and international law, says Mr Dion appears to have misinterpreted “his own act and his jurisdiction” and we need a “more in depth discussion of the accuracy of this report among government, the media and…the public.”
Sadly, the media is not interested in a thoughtful discussion about the Report. It’s perfectly happy running amok, cherry picking its way through the Report and blasting out the juicy bits to boost readership.
Media Spin I: Improper interference in a criminal proceeding
The media says Mr Trudeau breached the Act by trying to get JWR to “interfere” with a criminal prosecution. This ignores the fact the AG has the discretion to intervene and if she chooses to exercise her discretion she’s not “interfering” with a criminal prosecution, she’s “intervening.” (And remember Mr Dion said Mr Trudeau trying to get JWR to do anything doesn’t violate the Act).
Media Spin 2: The women vs the old boys club
The media says JWR led a group of women (Ms Roussel, director of public prosecutions, Ms Prince, her chief of staff, Ms Drouin, her deputy minister, former Liberal MP Ms Philpott and maybe even former chief justice Beverly McLachlin who “had her own reservations”) in a fight to fend off the “Old Boys club” (comprised of Mr Trudeau, some SNC executives and senior government officials, and maybe even two former Supreme Court justices, Frank Iacobucci and John Major) who were trying to get JWR to “interfere” with a criminal prosecution.
Have they read the report?
Ms Drouin, JWR’s deputy minister, was the first to propose bringing in an outside expert. She said the Attorney General (JWR) could issue a directive instructing the Prosecution Service to give the outside expert enough information to ensure the “public interest criteria had been properly weighed”. JWR rejected her deputy minister’s advice.
With respect to Ms McLachlin, JWR said she’d talk with the former chief justice, then changed her mind. Ms McLachlin was prepared to meet with JWR, Ms McLachlin’s so-called “reservations” were that she was no longer a lawyer and couldn’t give legal advice, she needed a proper briefing and she’d need to be retained by the AG not the government.
No matter how the media spins it, this wasn’t a battle between the women and the Old Boys club.
Media Spin 3: Rushed remediation agreements
Discussions about whether Canada should adopt remediation agreements (also known as deferred prosecution agreements) had been ongoing since May 2015 when SNC engaged in discussions with the Harper government. Talks stalled and were suspended pending the outcome of the federal election in Oct 2015.
The Trudeau government revisited the idea in Feb 2016. It held public consultations from Sept 25, 2016 to Dec 8, 2016 and found the majority of the participants supported the idea. It introduced amendments to the Criminal Code in the omnibus Budget Bill that was tabled on Mar 27, 2017. The Budget Bill was reviewed by the House Standing Committee and several Senate committees before receiving assent on June 21, 2018. The Criminal Code amendments went into effect on Sept 19, 2018.
JWR complained that the consultation process was rushed and refused to lead the memorandum on the Criminal Code amendments to Cabinet, speak publicly or speak before parliamentary committees about it.
Was the consultation rushed?
There are no rules setting out how long public consultation should last. Consultations range from three weeks for input on national historic sites, to three months for input on the agenda for Canada’s Sustainable Development Knowledge, to three years for input on the implementation of the Species at Risk. JWR didn’t say how long the consultation should have been, but she was so unhappy with the process she boycotted it.
Media Spin 4: It’s all about Quebec votes
Mr Trudeau had direct contact with JWR once, in a meeting in Sept 2018 that included Mr Wernick, the Clerk of the Privy Council. Mr Trudeau said he understood the decision was JWR’s to make and she’d made it. He said he wanted to find a “solution” and when she agreed to talk further with Mr Wernick and her own deputy minister (who’d suggested bringing in an outside expert and reaching out to the Prosecution Service) he thought she was prepared to revisit the issue.
During this meeting Mr Wernick mentioned the upcoming Quebec election and Mr Trudeau said he was a Quebec MP. JWR asked Mr Trudeau if he was politically interfering with her role. He said no and never mentioned politics again, unfortunately some of his staff did in their meetings with JWR and her staff.
Professor Mendes and others say the Shawcross doctrine precludes an AG from considering political interests in a criminal prosecution. But here’s the kicker. Professor Mendes says the Shawcross doctrine does not apply in a consideration of section 9 of the Act and the Ethics Commissioner misinterpreted the Act and his jurisdiction when he applied it.
Media Spin 5: This is about ethics
Mr Dion said Mr Trudeau attempted to influence JWR’s decision not to intervene in the SNC prosecution on four occasions:
- At the Sept 2018 meeting when he said he was an MP for Quebec. Professor Mendes says the Commissioner inappropriately applied the Shawcross doctrine and misinterpreted his jurisdiction when he did so.
- When PMO and Privy Council staff asked whether the AG could intervene in SNC’s application for judicial review to expedite the hearing or get a stay pending the outcome of discussions about the remediation agreement. Does staff asking the question amount to “influence”?
- Suggesting to JWR that she seek external advice from “someone like” former chief justice Beverly McLachlin when SNC had legal opinions from two former Supreme Court justices and shared them with the government and these opinions were prepared for the “sole purpose of persuading [JWR] to reconsider her opinion.” This is highly insulting. Ms McLachlin is not a puppet on a string. She would have formed her own opinion which may or may not have agreed with that of the two former Supreme Court justices.
- The “final and most flagrant attempt to influence” JWR was her conversation with Mr Wernick where he asked her to reconsider. The irony here is palpable. The Ethics Commissioner is relying on a conversation JWR secretly taped (most people would call that unethical, but the Ethics Commission calls it an “audio recording”) to condemn Mr Trudeau for things Mr Wernick said.
Mr Dion said these four instances tick the box for “seeking to influence.” He then embarked on a mushy discussion of the “national public interest” to demonstrate Mr Trudeau sought to improperly further SNC’s interests.
Mr Trudeau said he was trying to save 9,000 jobs. Mr Dion said this was improper because a prosecutor cannot consider the “national public interest.” Mr Trudeau’s lawyer argued “national public interest” as defined in the Criminal Code is modeled on the OECD Anti-Bribery Convention and the former Secretary-General of OECD said it was never intended to include job loss so a prosecutor can consider it . Mr Dion rejected this argument.
And Mr Trudeau was done.
When its all over
Yes, the Report contains evidence of discussions between Mr Trudeau and his staff and JWR and her staff, but these discussions are not enough to find Mr Trudeau in breach of the Act. To cross that bridge Mr Dion applied the Shawcross doctrine, perhaps in error, and relied on a definition of the national public interest which may be incorrect. The Report requires more in depth discussion.
Not that it matters to the media who are guided by the maxim: what would the National Enquirer do?
Based on what we’ve seen so far, the National Enquirer would be proud.